If Schapelle Corby is innocent, the Australian media have become her persecutor. So writes CLA member Roger A.Smith, probably Australia’s most experienced, hands-on observer of the Indonesian legal system, in this letter to a writer on The Australian newspaper. Smith is backed-up by Kay Danes, who knows first-hand from experience in Laos how Asian legal systems and Australian media naivety are potentially a powerful and toxic combination.
LETTER from Roger A. Smith to Caroline Overington, The Australian newspaper
I write to you in connection with the
article that was published under your name on the front page of the Weekend Australian on 5-6 July 2008
titled ‘Corby Father a Dealer: Cousin’.
Let me say first of all say how much I
admire your journalism, and in particular, your reporting on the Australian
Wheat Board (AWB) scandal and Australian social affairs. Your most recent article, however, is aberration
that is not worthy of the generally extremely high standards of journalism
upheld both by yourself and the Oz,
of which I am an avid reader.
Over the past three years, I have taken
more than a passing interest in the case of Schapelle Corby. My interest
derives from having lived in Indonesia for nine years, which included work
reporting on court procedures for the International Commission of Jurists (ICJ)
and International Bar Association (IBA) as well as work as a consultant to an
Indonesian law firm. I have probably
spent more hours in Indonesian courts than just about any other person in
Australia – thankfully only as an observer and not as a litigant, or God
forbid, a defendant!
As an Australian-trainer lawyer and a
keen observer of the Indonesian judicial system, my position on the Corby case
is a simple one that is probably shared by anyone who has honestly followed the
case. Corby is being unjustly imprisoned for a crime that was NEVER PROPERLY
INVESTIGATED. The drugs were destroyed before they could be tested for origin.
The bag in which they were contained was never checked for fingerprints.
Airport CCTV scans were wiped. There is
no corroborating evidence in the case whatsoever aside from the drugs in the
bag and that is not enough to put someone away for 20 years where considerable
Article 66 of the Indonesian Criminal
Procedural Codes (KUHAP) states: “The
onus of proof is NOT on the Defendant”. Given that no one has been able to
prove beyond a reasonable doubt either her guilt or her innocence, then she
must be freed. This is a fundamental
principle of any legal system. You can
not send a person to jail for 20 years unless the prosecution has proven its
case beyond a reasonable doubt.
It has still never been explained how a
passenger could check in on to a Qantas flight a 4kg sack of ganja inside an
unlocked surfboard bag and then have it pass without detection through not just
one but THREE Australian airport terminals – two domestic (Brisbane and Sydney)
and one international (Sydney). Quite
frankly, I don’t fancy my chances if I tried this tomorrow at Canberra airport
and then expected it to pass undetected through Sydney on to my intended
overseas location. It just wouldn’t happen!.
Simply, we don’t honestly know who put
the marijuana in the boogie board. I
don’t believe it was Schapelle. You might suspect it was her or her family, but
until this has been investigated and proven, no one should be imprisoned for
The real story here for anyone with the
slightest modicum of a sense of justice is not to provide a vehicle for
Australians to show how socially superior they are to a downtrodden family with
few media skills. The real story is how a young powerless woman is being
imprisoned for a crime that she probably had nothing to do with.
I would also have serious doubts about
Schapelle and her family’s innocence in the matter except for one very
important consideration. Ever since the
verdict was handed down and the Government falsely blamed her supporters for a
biological terrorist attack on the Indonesian embassy, the media has been going
gangbusters trying to find something to link her or her family to drugs. I have
never seen any family in Australia subjected to such extraordinary scrutiny.
Every minute detail of their lives and associates from former next-door
neighbours to ex-best friends and persons they were once photographed with has
been exposed and examined. But every allegation – and there are far too many in
the media since 2005 for me to keep track of them all – has been found to lack
substance. The defamation verdict in the Today
Tonight trial in which Mercedes Corby and her mother were vindicated is
just the latest example. Like clockwork, your story too has already been
discredited within days of it being published.
If we are to believe even a small
amount of the allegations against Schapelle, her sister, mother, father and
brother-in-law, it still beggars belief that they could have been involved in
the drug trade for a long period without even a single charge – let alone
conviction – against any of them since the 1970s. And this after being
subjected to the most intensive media and police scrutiny imaginable!
Whether it was to smooth over relations
with Indonesia or for ratings, the media has been going all out to try to
convince the Australian public that their initial assessment at the time of the
trial back in early 2005 was wrong. Yet it is precisely in this way, through
observing directly testimony and the demeanor of defendants and witnesses at
trial that our system determines the guilt or innocence of accused persons.
At the time of the verdict, polls
showed that some 80-90 per cent of Australians believed she was innocent. This
was after direct observation of her demeanor at trial in live or delayed television
coverage. Since that time, there has been no substantiated or material or
admissible evidence coming to light that would change such an evaluation. The only change has been the way the media
has chosen to play it out – at first strongly supporting her innocence and,
from June 2005 onwards, strongly advocating her guilt.
Because I believe in freedom of
opinion, I will say what I truly think about the handling of the case by the
Indonesian judiciary based on my involvement with their system. There are three
elements to the outcome of judicial determinations in Indonesia and only one of
these is justice and the law. The other
two are politics and money. In the Corby case, factor number 2 applied. Quite
simply, the judges couldn’t possibly have freed her because the politics of the
case meant that they couldn’t have been seen to give the benefit of reasonable
doubt to an accused drug dealer despite the law requiring them to do so. With
the benefit of hindsight, the defence strategy should have aimed at winning
public sympathy in both countries! This is what her subsequent Indonesian
lawyer, Hotman Paris, tried to do, but by this time the Australian media had
turned against her and politics therefore meant she had to serve – in my
opinion wrongly and as an innocent person.
Caroline, the Corby family doesn’t have
sophisticated media minders, PR agents or political interest groups to lobby on
their behalf and she has been almost totally ignored by the human rights groups
that defended David Hicks despite the injustices in her case being, in my
opinion, graver and her sentence obviously more severe. To criticize the
American judicial system is to uphold human rights, but to criticize far worse
violations in the Indonesian system is racism. I will never understand this
I don’t honestly know why The Weekend Australian and the ABC choose to so prominently publish
unsubstantiated allegations about a dad from a family that is down on its luck
to say the very least. Is it because, unlike Mercedes and Roseleigh Corby, a
dead man can’t sue for defamation?
It is traumatic enough having had a
client as a foreign prisoner in an Indonesian jail, but I respectfully suggest
that you can’t possibly imagine the pain that a family in this situation has to
Advocacy for Schapelle Corby is the
most politically incorrect and naive action imaginable in Australia at this
time, but it happens to be the right thing to do. We are all diminished and our
rights and protections as Australian citizens severely comprised as a result of
the shoddy way that she has been treated.
Roger Smith, CLA member
Compare and contrast Schapelle’s reaction to that of a guilty, female,
convicted, drug smuggler faced with the same punishment, Renae Lawrence. As one of Australia’s most experienced
barristers Philip Opas QC said in relation to the Corby case:
“She’s either a better
actress than Sarah Bernhardt ever was or she’s telling the truth and if that
doesn’t raise a doubt in the minds of anybody observing her then, as I’ve said,
I’d eat my wig. I would never convict her on the evidence I’ve seen”. (ABC Interview, 15 May 2005)
Corby and the family’s appearance in the recent
documentary The Hidden Truth screened
on Channel 9 in June 2008, coupled with the total lack of any
incriminating evidence to emerge since 2005, does nothing to detract from
that reality. If she is guilty, then I
suggest we sign her up to play alongside Nicole Kidman or Cate Blanchett once
she’s released in 2024!
from Kay Danes, Foreign Prison Support Service:
I strongly support your
writings and just wish this vendetta from the Australian media would cease.
They do not seem to care at all that their inconsistent ramblings are damaging
a legal case beyond repair. They have clearly lost objectivity and now,
as we have seen, even the ABC
are running ‘claims’ made by distant family members, to whom no
credibility has been established, in order to promote further bias towards
Schapelle Corby. This is something that shocks and sickens me because
I would have thought better of the ABC than to succumb to such sensationalist media grabs.
I dont’ know what can be
done for Schapelle Corby now in a legal sense. Her situation is one of great
concern to me, as is the fact that the media is causing Australians to focus
more on TV-style drama & ratings than social justice and civil rights. I
am deeply disappointed and hope that Australians will realise that the
media don’t always get it right. Certainly those advising her to smuggle a TV
camera into Kerobokan Prison obviously had very little regard to her
present situation. It was highly reckless and we are yet to see
the repercussions for Schapelle and the other Australians currently detained
When you are detained in
a foreign prison you become vulnerable to all the elements, not just those
within your controlled environment. When my husband and I were unlawfully
detained in Laos in 2000, in violation of international law, most of
the media concerning our case merely perpetuated the false
allegations put forth by corrupt Lao officials. The media reported what they
thought would sell newspapers. To them a headline such as ‘Australian
Couple Accused of Gem Theft’ was more
attention grabbing than the closer truth ‘Australians held hostage!’ Where there’s smoke, there’s fire, they
This is surely a very
lazy way of thinking that is responsible for many injustices in our world. How
anyone could believe what our captors released to the media: that I had attempted
to smuggle 160kg of sapphires in my underwear, while dragging two frightened
children across the border, in the company of the Australian Embassy, and
somehow passing this off without anybody noticing, is incredible. As I said,
But unlike Schapelle, we
were lucky, we had the full backing of the Australian Government that
believed in our innocence; and professional advisors who were able to handle
our case in a manner that did not offend the Laotian authorities.
Hence our government was able to negotiate an unprecedented presidential
pardon to secure our release. But the truth remained buried beneath the media
grabs and, with it, our previously unblemished reputations.
Regardless of guilt or
innocence, I strongly believe that Schapelle Corby is being victimised by
the Australian media. These constant attacks leave us with very little
room to plead her case to anyone; and all the breaches of Indonesian and
international law go unnoticed because they are overshadowed by hearsay and
It is a shame people
have the tendency to form an opinion based solely on media reports, often
without knowing the facts. Is everyone guilty just because it‚s reported in the
media that they are?
When a person is
detained in prison, they often have no control of what’s going on around them
and not much knowledge of what people are doing or saying on their behalf or
about them. Prisoners do not lose their rights simply because they are
prisoners, or at least they are not supposed to.
Sadly, people tend to
forget that prisoners are still human. Schapelle is still someone‚s daughter,
sister and someone’s best friend. There are many people who care about her
‘rights’ and continue to hope that she survives whatever decisions are made by
the Indonesian authorities. She should still be allowed some dignity by virtue of simply being
Thank you Roger and
Civil Liberties Australia for standing up for Schapelle’s rights. I will make
sure she is made aware of this.
Kay Danes, Capalaba QLD
International Human Rights Advocate
Foreign Prisoner Support Service